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SSM Petition Response: 

EPA Responses to OMB Comments Received 1/30/13 

on 11/26/12 Draft Proposal

OMB

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(1/30/13) 

page no.

2/5/2013

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page no. Comment, in brief EPA Response

In 

General

Several edits have been made at 

various points in the document at 

EPA’s initiative, mostly to correct 

small errors. These are selfexplanatory but EPA staff can 

address any questions on these.

18 16 A1. Copy of Petition in docket? Yes, the petition has been loaded into 

the docket.

19 18 A2. Settlement Agreement and focus of litigation?

The settlement agreement is in the 

docket, and edits have been made at 

this place in the notice to provide 

more historical information on the 

litigation leading to the settlement.

20 18 A3. Providing guidance to states re enforcement discretion and 

affirmative defense? Requires Discussion 

20 19 A4. Commenter recommends rewording. Suggested edit has been made.

22 21 A5. Say more about "impermissibly" interfering with enforcement? An edit has been made to address 

this comment.

25-26 24 A6. Practical implications?

Requires discussion.

Practical consequences to states are 

addressed in the second paragraph 

that follows Table 1.

39 36 Suggested edits Requires discussion.
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48 45 Suggested edits Requires discussion.

58 54 A7. Does EPA's determination consider actual cause?

Requires discussion. 

This question is addressed in the 

legal background memo, which cites 

to the Luminant decision.

95 88 A8. Might change interpretation based on comment? Yes. An edit has been made to make 

this clearer.

95 88 A8 (more). Articulate legal authority in preamble vs. as separate 

memo? Requires discussion.

102 95

-- Commenter recommends a recurring edit, to change "inconsistent 

with the CAA and the EPA's SSM Policy" to "inconsistent with the 

CAA as interpreted in the EPA's SSM Policy."

We have not made this change in 

passages that summarize statements 

in the Petition, because the original 

wording is accurate. We have made 

this change in passages that state 

EPA’s assessment of the petition and 

our proposed action.

104 96 A9. Implications of this rule, once finalized, on, e.g., our recent 

Regional Haze "findings of failure to submit"?

We do not see any implications for 

this action on our Regional Haze 

findings of failure to submit or on the 

SIP and FIP actions that have been 

taken since those findings. 

• Impermissible SSM 

provisions in theory could 

prevent EPA approval of a 

regional haze SIP, but they 

would not have had no role in 

the findings of failure to 

submit regional haze SIPs, 
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page no. Comment, in brief EPA Response

because those findings were 

based only on failure to 

submit complete SIPs.

• In fact, we have not 

disapproved any RH SIPs due 

to impermissible SSM 

provisions. Regional Offices 

worked with their states to 

avoid submission of such 

provisions. (In the case of 

South Dakota, we worked 

with the state to make an 

approvable interpretation of a 

SIP provision.)

• The FIPs we have 

promulgated do not include 

any impermissible SSM 

provisions. Many are based 

on 30-day averaging periods 

for the emissions limits 

and/or have emission limits 

set with explicit consideration 

of startup and shutdown, to 

practically allow for higher 

emissions during startup and 

shutdown in a manner 

consistent with the CAA. 
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page no.

2/5/2013

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page no. Comment, in brief EPA Response

Some (if not all) include 

provisions for affirmative 

defense consistent with this 

notice. No comment 

requesting an affirmative 

defense provision was 

rejected.

• Because SSM provisions 

were not the reason that any 

regional haze FIPs were 

needed, if states fix their 

general SSM provisions that 

would not by itself allow EPA 

to approve the RH SIPs that 

were not fully approved and 

withdraw the RH FIPs.

113 105 -- Insert "certain limited" circumstances? Suggested edit has been made.

115 106 -- Commenter recommends rewording. Suggested edit has been made.

123 114 A10. Engaged with states?

Requires discussion.

The notice makes clear that we 

welcome state comments in cases 

where we have had to interpret a SIP 

provision, which gives states an 

opportunity to document an 

interpretation different than the one 
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page no. Comment, in brief EPA Response

on which we are basing our proposed 

action.

124 115 A11. What does "through many iterations" mean—that we've always 

had same position on automatic exemptions? A clarifying edit has been made.

124-125 115-116 A12. Clarify meaning of "take action to rectify"? A clarifying edit has been made.

125 116 A13. Say more about how inappropriate director's discretion 

provisions allow case-by-case exemptions? A clarifying edit has been made.

126 117 A14. Are there provisions for director's discretion or enforcement 

discretion that don't foreclose on EPA's enforcement?

Requires discussion.

This action does not directly affect 

other states, although the final 

notice’s restatement of the SSM 

Policy will guide future EPA actions 

for those states.

126 117 A15. Explain "understood from the outset" with respect to 

enforcement discretion provisions' being state-only? A clarifying edit has been made.

128 119 --Insert "identified by the petitioners." The edit has been made.

128 119 A16. Say more about the "certain circumstances" under which we 

would find affirmative defense provisions to be appropriate?

A footnote has been added to provide 

and explanation of “certain 

circumstances”.

129 120 A17. How does one evaluate potential to exceed? Requires discussion.

130 121 -- Insert "in an individual SIP." The edit has been made.

130 121 A18. How does one evaluate adequacy of criteria for an affirmative 

defense provision?

This is addressed elsewhere in the 

notice, particularly in section VII.B. 

A sentence has been added to make 
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this clear.

130 121 A19. General rationale for policy change (expressed preference) for 

affirmative defense over enforcement discretion? 

EPA does not intend to be expressing 

a preference for affirmative defense 

over enforcement discretion. Can the 

commenter point to passages that 

seem to do that?

130 121

A20. Commenters expressed that it would be helpful to understand 

the specific regulatory implications for individual states where EPA 

has proposed to grant the petition.

Requires discussion.

Practical consequences to states are 

addressed in the second paragraph 

that follows Table 1.

122-308

-- Commenter recommends a recurring edit, to change "inconsistent 

with the CAA and the EPA's SSM Policy" to "inconsistent with the 

CAA as interpreted in the EPA's SSM Policy."

We have not made this change in 

passages that summarize statements 

in the Petition, because the original 

wording is accurate. We have made 

this change in passages that state 

EPA’s assessment of the petition and 

our proposed action.

334 313

A21. UMRA section. Commenters expressed concern that rule may 

impose unfunded mandates on states. States will have to impose new 

requirements on facilities?

Requires discussion.

335 314 A22. Federalism section. Has EPA analyzed the "not substantial" 

effects on states of having to revise their SIPs? Requires discussion.